关于CISG的一些疑问!在1969年5月23日,原告（卖方）就一台机器向买方提供报价（要约）,价格￥75,535,在10个月内发货,但该报价附带一项条件：即该机器价格是不固定的,视交付货物时的市场价格

关于CISG的一些疑问!在1969年5月23日,原告（卖方）就一台机器向买方提供报价（要约）,价格￥75,535,在10个月内发货,但该报价附带一项条件：即该机器价格是不固定的,视交付货物时的市场价格
关于CISG的一些疑问!
在1969年5月23日,原告（卖方）就一台机器向买方提供报价（要约）,价格￥75,535,在10个月内发货,但该报价附带一项条件：即该机器价格是不固定的,视交付货物时的市场价格而定,即存在价格变动条款.该报价单称,此条件比买方任何条件优先使用,买方在1969年5月27日时回信,提交订单.但买方订单中也有与卖方报价中的不同条件,最主要的区别是买方认为此机器价格是固定的,不随市价的变动而变动,在买方订单中标有“以本条件为准”.1969年6月5日,卖方收到买方的订单后,在回信中说,以5月23日所定的报价为准,在1970年3-4月份发货,货物在1970年9月备好的,但是买方由于某种原因要等到11月份才能收获,到买方收获时发生物价上涨,卖方要求支付因市价上涨而增加的￥2,892,因为机器价格在1969年5月27日到1970年4月1日这段时间中增长了￥2,892.原告认为,其在1969年5月23日报价单中所报价格为￥75,535,在10个月内发货,报价单背后为格式合同条款,包括价格变动条款,货物价格随市场情况的变化而变动,当市场价格上升时,货物价格随之上升,交货时由于市场价格上升,所以其价格以市场价格为准而不是以合同价格为准,应该是￥75,535+￥2,892.
　　　设案例中卖方于5月23日提出的价格变动条款已被买方接受,合同有效成立,其他各情况如题所述.请以《联合国销售合同公约》为依据具体分析哪一方应付违约责任?

关于CISG的一些疑问!在1969年5月23日,原告（卖方）就一台机器向买方提供报价（要约）,价格￥75,535,在10个月内发货,但该报价附带一项条件：即该机器价格是不固定的,视交付货物时的市场价格
If
those documents are analysed in our traditional method,the result would seem
to me t be this:the quotation of 23rd May 1969 was an offer by the
sellers to the buyers containing the terms and conditions on the back.The
order of 27th May 1969 purported to be an acceptance of that offer
in that it was for the same machine at the same price,but it contained such
additions as to cost of installation,date of delivery and so forth,that it
was in law a rejection of the offer and constituted a counter-offer.That is
clear from Hyde v.Wrench [supra,at 33].As Megaw J.said in Trollope
& Colls v.Atomic Power Constructions [ [1962] 3 All E.R.1035 at 1038] “
…….the counter-offer kills the original offer”.The letter of the sellers of 5th
June 1969 was an acceptance of that counter-offer,as is shown by the
acknowledgement which the sellers signed and returned to the buyers.The
reference to the quotation of 23rd May 1969 referred only to the
price and identity of the machine.
………….
The
better way is to look at all the documents passing between the parties and
glean from them,or from the conduct of the parties,whether they have reached
agreement on all material points,even though there may be differences between
the forms and conditions printed on the back of them.As Lord Cairns LC said in
Brogden v.Metropolitan Railway Co.[(1877),2 App.Cas.666 at 672]:
………there
may be a consensus between the parties far short of a complete mode of
expressing it,and that consensus may be discovered from letters or from other
documents of an imperfect and incomplete description.
Applying
this guide,it will be found that in most cases when there is a ‘battle of
forms’ there is a contract as soon as the last of the forms is sent and
received without objection being taken to it.That is well observed in Benjamin
on Sale [9th ed.(1974),84-85].The difficulty is to decide which
form,or which part of which form,is a term or condition of the contract.In
some cases the battle won by the man who fires the last shot.He is the man who
puts forward the latest term conditions; and,if they are not objected to by
the other party,he may be taken to have agreed to them.Such was British Road
Services Ltd.v.Arthur V.Crutchley Co.,[[1968] 1 All E.R.8ll at 816-817(
C.A.)] per Lord Pearson; and the illustration given by Professor Guest in
Anson’s Law of Contract [24th ed.(1975),37-38] where he says that
“the terms of the contract consist of the terms of the off subject to the
modifications contained in the acceptance”.That may however go too far.In
some cases,however,the battle is won by the man who gets the blow in first.
If he offers to sell at a named price on the terms and conditions stated on the
back and the buyer orders the goods purporting to accept the offer on an order
from with his own different terms and conditions on the back,then,if the difference
is so material that it would affect the price,the buyer ought not to be
allowed to take advantage of the seller.There are yet other cases where the
battle depends on the shots fired on both sides.There is a concluded contract
but the forms vary.The terms and conditions of both parties are to be
construed together.If they can be reconciled so as to give a harmonious
result,all well and good.If differences are irreconcilable,so that they are
mutually contradictory,then the conflicting terms may have to be scrapped and
replaced by a reasonable implication.
In
the present case the judge thought that the sellers in their original quotation
got their blow in first,especially by the provision that’ These terms and
conditions shall prevail over any terms and conditions in the Buyer’ s order’.
It was so emphatic that the price variation clause continued through all the
subsequent dealings and that the buyer must be taken to have agreed to it.I
can understand that point of view.But I think that the documents have to be
considered as a whole.And,as a matter of construction,I think the
acknowledgment of 5th June 1969 is the decisive document.It makes
it clear that the contract was on the buyers’ terms and not on the sellers’
terms; and the buyers’ terms did not include a price variation clause.
I
would wherefore allow the appeal and enter judgment for the buyers.